Theophane and Hunt and Anor - [2016] FamCAFC 87

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT AND ANOR

[2016] FamCAFC 87

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders providing for the parties’ child to live with the mother and spend no time with the father – Where the father was self-represented on appeal – Where the errors alleged on appeal were not easily discernible – Where the Full Court identified and considered a number of complaints – Where no complaint was found to have merit – Appeal dismissed – Father to pay the costs of the mother and the Independent Children’s Lawyer in a fixed sum.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B(2), 65D, 69ZN(4), 69ZQ(1), 69ZQ(1), 102QB(2), 117
Family Law Rules 2004 (Cth) Schedule 3

Cannon & Acres [2014] FamCA 104
CDJ v VAJ (1998) 197 CLR 172
D and D (Costs) (No 2) (2010) FLC 93-435
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gronow v Gronow (1979) 144 CLR 513
Helbig & Rowe (No 2) [2012] FamCAFC 175
House v The King(1936) 55 CLR 499
Johnson v Johnson (2000) 201 CLR 488
M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461
Neil v Nott (1994) 121 ALR 148
Rice and Asplund (1979) FLC 90-725

APPELLANT:

Mr Theophane

RESPONDENT:

Ms Hunt

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

1089

2007

APPEAL NUMBER:

2014

DATE DELIVERED:

24 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, May and Cronin JJ

HEARING DATE:

24 November 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 November 2014

LOWER COURT MNC:

[2014] FamCA 1038

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms McMillan QC

SOLICITOR FOR THE RESPONDENT:

O’Reilly Stevens Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

Orders

The appeal filed 19 December 2014 be dismissed.
The application in an appeal filed 5 November 2015 is dismissed.
The father pay the mother’s costs of and incidental to the appeal fixed in the sum of $4,040.70.
The father pay the Independent Children’s Lawyer’s costs of and incidental to the appeal fixed in the sum of $4,040.70.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 79 of 2014
File Number: CSC 1089 of 2007

Mr Theophane

Appellant

And

Ms Hunt

Respondent

And

Susan Gray

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

On 24 November 2014 Tree J made orders by which the relationship between Mr Theophane (“the father”) and his only child (“X”, “the child”) (now aged nine) was restricted to a card or letter being sent on two occasions per year until she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FamCAFC 87
Decision Date: 24 May 2016

CaseChat Overview and Summary

Theophane brought an appeal against a decision of Hunt J, seeking to overturn an order made in the Family Court concerning the care and control of his children. The appeal was heard in the Family Court of Australia. The primary concern was whether the trial judge had erred in making certain findings regarding the care, welfare and development of the children, and whether the decision to award sole parental responsibility to the mother was appropriate.

The court was required to determine if there were any errors in the trial judge's assessment of the evidence and findings, particularly in relation to the children's care, welfare and development. It was also necessary to review the decision to award sole parental responsibility to the mother, considering the best interests of the children.

The court found that there were no errors in the trial judge's assessment of the evidence and findings. The court held that the trial judge had correctly evaluated the evidence and made findings that were supported by the material before the court. The decision to award sole parental responsibility to the mother was deemed appropriate, given the evidence of the children's welfare and development. The appeal was dismissed, and the father was ordered to pay the mother’s and the Independent Children’s Lawyer’s costs of the appeal.

Orders

Orders of the court

The appeal filed 19 December 2014 be dismissed.

The application in an appeal filed 5 November 2015 is dismissed.

The father pay the mother’s costs of and incidental to the appeal fixed in the sum of $4,040.70.

The father pay the Independent Children’s Lawyer’s costs of and incidental to the appeal fixed in the sum of $4,040.70.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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